Nash v. Brophy

54 Mass. 476

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1847
• Status: Published

Opinion

Shaw, C. J.

The allowance of the amendment of the writ, so as to make it bear test of Daniel Wells, instead of John ,M. Williams, as chief justice, was right, and fully authorized by the Rev. Sts. c. 100, § 20. The test is a mere matter of form. Ripley v. Warren, 2 Pick. 592.

The motion to dismiss the action, because brought in the wrong county, was rightly overruled. The trustee was described as of Qnincy in the county of Norfolk. Prima facie, therefore, the writ was properly returnable in that county; and there was no .error, apparent on the record, to warrant a dismissal of the action on motion. Whether the trustee might have come in, at the first term, and have pleaded, in abatement of the writ, the matter stated in his answer, viz. that he was not resident in the county when he was summoned, is not now in question, because he has not so pleaded.

We think Kinnin was rightly discharged on his answer; he being indebted to the principal defendant, as one only of a firm, and the partner not being named nor summoned. And he answers, that the debt was unconditionally, .and without indemnity, paid by the firm. Jewett v. Bacon, 6 Mass. 60, 62. The trustee, therefore, is discharged, with costs.

Such a service having been made on the principal defendant, as would be sufficient to charge him in an action commenced by the ordinary process, the plaintiff has a right to proceed in the suit against him, in the same manner as if no trustee had been summoned.